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Argument against the motion.

in the case under consideration is not final within the decisions of the court. The injunction prayed for was made perpetual, but there was a reference to a master to ascertain the damages by reason of the infringement.

In Perkins v. Fourniquet, 6 Howard, 206, the decree was that the complainant was entitled to two sevenths of certain property, and referred it to a master to take and report an account of it, reserving all other questions until the coming in of the master's report. It was held that this was not a final decree on which an appeal could be taken.

In Pulliam et al. v. Christian, 6 Howard, 209, the decree set aside a deed and directed an account from trustees. This was held not to be a final decree, and an appeal from it was dismissed.

In Craighead et al. v. Wilson, 18 Howard, 199, a bill was filed claiming property as heirs. A decree was made, which, among other things, referred it to a master to take an account. The court held that this decree was interlocutory, and that no final decree could be made until after the coming in of the master's report, and the appeal was dismissed.

In Crawford v. Points, 13 Howard, 11, a decree was made directing an account. An appeal was taken before the accounting. On a motion to dismiss the appeal, the court say, "The decree is not final. . . An account is directed to be taken of the rents and profits, &c. While these things remain to be done, the decree is not final, and no appeal from it would lie to this court."

In Beebe et al. v. Russell, 19 Howard, 285, the court thus distinguishes between the two sorts of decrees: "A decree is understood to be interlocutory whenever an inquiry as to matter of law or fact is directed, preparatory to a final decision. When a decree. finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the further judgment of the court, so that it will not be necessary to bring the cause again before the court for its final decision, it is a final decree. These cases seem conclusive.

Mr. Norton, contra:

I. The precise question whether an appeal may be taken from such a decree does not seem to have arisen in this court, but the principles which have controlled the decisions concerning appeals, establish the right of appeal from the decree herein.

In Ray v. Law, 3 Cranch, 179, it was held, (Marshall, C. J.,) "That a decree for a sale under a mortgage is such a final decree as may be appealed from," although in such cases there follows a

Argument against the motion.

decree confirming the sale, and it may be for execution for a deficiency. That case was followed in Whiting v. Bank of United States, 13 Peters, 6, the court saying in reference thereto, "This decision must have been made upon the general ground that a decree, final upon the merits of the controversy between the parties, is a decree upon which a bill of review would lie, without and independent of any ulterior proceedings."

In Forgay v. Conrad, 6 Howard, 201, where the decree set aside. as void certain deeds of lands and slaves, and directed an account of profits, and expressly retained a part of the bill for further decree, it was held that an appeal from same was well taken.

In Barnard v. Gibson, 7 Howard, 653, relied on by the other side, where the decree was for an injunction and an account of profits, and expressly reserved "the question of costs and all other questions" not specifically passed upon, it was held that from such decree an appeal would not lie; and in that case this court did not undertake to reverse its former decisions, but to abide thereby.

Now the decree in this case, though different from that in either of the cases thus referred to, is much nearer that in Forgay v. Conrad than the one in Barnard v. Gibson, for it fully disposes of the merits, without reserving any question whatever, and leaves nothing uncompleted but an accounting, like that in Forgay v. Conrad; and upon the principle established in those cases, the appeal was well taken. That principle is, that whenever a decree decides the merits of the controversy, it is final, for the purposes of an appeal, though ulterior proceedings have to be had and a further or additional decree yet remains to be made. Thus in Forgay v. Conrad, the court say of the decree therein, "undoubtedly it is not final, in the strict technical sense of the term," and then, adopting a wider view of the act of Congress, lay down the principle that when a decree decides the right in controversy, and permits it to be carried into execution, it is pro tanto, final for the purposes of an appeal. And the only way of reconciling Barnard v. Gibson with that case is, that it reserved the question of costs and other questions.

II. An appeal from such a decree as this is should be allowed: 1st. Because it disposes of the entire merits, and leaves nothing but a mere accounting.

2d. Because the court below has power to render and enforce such a decree, (and the practice of rendering and enforcing such decrees has become very general,) and unless an appeal be allowed therefrom, the right of appeal to this court is virtually annulled in this class of cases, where the decree is for the complainant.

Statement of the case.

3d. Because the accounting in such cases is necessarily tedious and expensive, and should therefore be postponed until the merits. are finally disposed of; for if the decree be reversed the accounting becomes a needless waste of time and money, and even if it be modified, as to the nature or extent of the patent or of the infringement of same, such accounting becomes almost equally useless.

Mr. Justice NELSON delivered the opinion of the court, and after stating the case said:

The decree is not final within the act of Congress providing for appeals to this court, according to a long and well-settled class of cases, some of which we only need refer to in disposing of the case. The Palmyra, 10 Wheaton, 502; Barnard et al. v. Gibson, 7 Howard, 650; Crawford v. Points, 13 Id., 11; Craighead v. Wilson, 18 Id., 199; Beebe et al v. Russell, 19 Id., 283.

MOTION GRANTED.

HECKERS v. FOWLER.
(2 Wallace, 123.)

1. A declaration in covenant by a patentee, setting out a sealed contract by defendant to pay him a certain tariff in consideration of an exclusive right to use the patent within a certain district, is good.

2. The practice of referring pending actions under a rule of court to arbitrators appointed by the court, with the consent of both parties, is a mode of prosecuting a suit to judgment, as well established and as fully warranted as a trial by jury. 3. A reference to hear and determine all the issues in a case does not require the referee to report his finding in all. It is answered by his hearing and determining all and reporting the result.

4. A judgment in the Circuit Court, entered by the clerk without objection upon the report of the referee and pursuant to order of court and the agreement of parties, is valid and can be enforced.

JOHN FOWLER brought suit in the Circuit Court for the Southern District of New York, against John and George Hecker, to recover damages for a breach of covenant. The declaration alleged that the plaintiff, who was the patentee of an improvement in making flour, had granted to the Heckers the right to supply a particular district with such flour, &c., paying so much per barrel. Defense, that the patent was worthless, and that the plaintiff had failed to maintain its validity at his own cost, as he had agreed to do. Replication; issue, and joinder. While the case was thus pending, the attorneys of the parties agreed to refer it to a "referee, to hear and determine the same, and all issues therein, with the same powers as the court, and that an order be entered making such

Argument for the plaintiff in error.

reference; and that the report of said referee have the same force and effect as a judgment of said court." One of the judges accordingly "ordered that the cause be referred to H. Cramm, Esq., to hear and determine all the issues herein, with the fullest powers ordinarily given to referees; and that on filing the report of the said referee with the clerk of the court, judgment be entered in conformity therewith, the same as if the cause had been tried before the court." The referee heard the case, and without stating what his findings were upon any of the several issues presented in the pleadings, made the finding, simply and generally, that there was due to plaintiff, John Fowler, from the defendants, John and George Hecker, the sum of $9,500, besides costs, all which he "reported" to the court. On this, the attorneys of Fowler drew up the form of a judgment, and without the presence or action of the court, except the order of reference already alluded to, filed it with the clerk, who thereon entered judgment, as a judgment of the court, for the amount reported, with costs. The defendant took this writ of error.

It is necessary here to state that, by the code of New York, § 272, a referee is clothed with the attributes of a judge. A trial by him is to be conducted in the same manner as a trial by the court; he may grant adjournments, allow amendments, compel the attendance of witnesses. His decisions may be excepted to and revised, as in cases of appeal from courts of record. It is also enacted that "the report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court."

Mr. Norton, for the plaintiff in error: No objection, we think, can properly be taken to the right of this court to entertain the matters here presented; although it might be suggested that the facts in this case not having been found either by a general or special verdict, nor agreed upon in a case stated, and there being no bill of exceptions, there are no questions open to revision here, and hence. that this court will affirm the judgment of the court below, of course. We apprehend it to be clear, however, that while this court will not review the judgment of inferior courts made without the intervention of juries, or on a case stated, it will, at the same time, exercise its superintending care in preventing the judgments of State judicial officers from being interpolated into the records of the courts of the United States, and being enforced by the process of those courts.

Assuming, then, the jurisdiction to exist, we observe:

Opinion of the court.

1. That the declaration, which relies on a contract in restraint of trade, does not set forth a sufficient cause of action. But,

2. The case presents to us a record of mixed proceedings, commenced before a judicial officer of the United States, conducted by a judicial officer unknown to the courts of the United States, whose judgment (or a paper purporting to be a judgment) is filed in the office of the United States Circuit Court, attached to the pleadings by its clerk, and made a part of the record in this case. Will such a proceeding be allowed? State courts are authorized by statutes to have such proceedings; but without statute the proceedings would be very irregular, and there is no statute of the United States which authorizes them in the Federal courts. This court has, indeed, decided that if the parties agree to submit the trial both of fact and law to the judge, they constitute him an arbitrator or referee, whose award must be final and conclusive between them; but no consent can constitute this court appellate arbitrators. But in this and in other cases which might be cited the judgment was rendered by a judge created by the laws of the United States, whose function it is to pronounce judgments in the courts of the United States. In this record there is no such judgment. Whatever is rendered, is rendered by a person wholly unjudicial, and dehors the tribunal; or coming into it only pro hac vice. Even if it is a judgment in the Circuit Court, it is not a judgment of the court.

3. The referee did not decide the case in conformity with the order of court. He did not "determine all the issues of the case;" but made a single and general finding that there was due such a sum.

4. But even the referee's judgment was not properly entered. In fact, though he made a report, he gave no judgment. The clerk gave the judgment. It is, therefore, invalid, and cannot be enforced.

Mr. Andrews, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the Southern District of New York.

Suit was brought in this case by the present defendant, and judgment was rendered in his favor in the court below. Action was referred, under a rule of court, by consent of the parties, and the judgment in the case was rendered upon the report of the referee, made in pursuance of the rule of reference. Original de

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